South Africa: Policy in the Face of Xenophobia
Creative policy thinking about immigration in South Africa has been hampered by the country's unsavory immigration history, uncertainty about the compatibility between immigration and postapartheid transformation, and a citizenry that shows no appetite whatsoever for immigration.
Before 1994, immigration policy was a naked instrument of racial domination. Until 1991, the official definition of an immigrant was that he or she had to be able to assimilate into the white population.
By definition, therefore, Africans were not considered immigrants. Rather, they came to South Africa as temporary contract migrants under bilateral agreements between the apartheid government and neighbors including Lesotho, Mozambique, and Malawi. This gave rise to the infamous South African migrant labor system, a system still very much in place today.
After 1994, the South African government struggled to formulate a policy appropriate to the country's new role in a changing regional, continental, and global migration regime.
The focus here is on the struggle to define a postapartheid migration policy that is responsive to South Africa's changing role in Africa, the complicated relationship between migration and development, and the problem of rampant xenophobia, seen most graphically in the shameful events of May 2008.
Cross-border labor migration between South Africa and its neighbors dates back to the mid-19th century, when the South African diamond and gold mining industries were founded and the country began its trek toward a modern industrial economy.
A significant proportion of South Africa's neighboring states have migrated to South Africa, many to work. According to a recent survey by the Southern African Migration Project (SAMP), for example, 81 percent of Lesotho's adult population has been to South Africa. As many as 83 percent of Lesotho's citizens have parents and 51 percent have grandparents who have worked in South Africa. The equivalent figures for Mozambique are 29 percent, 53 percent, and 32 percent, while for Zimbabwe the corresponding figures are 23 percent, 24 percent, and 23 percent.
Cross-border migration has taken various forms. At one end of the spectrum is the highly regulated and formalized mine contract-labor system established between 1890 and 1920, which continues today. At the other are various kinds of informal or unregulated movements across borders. South Africa has received both kinds of migrants for decades.
Commercial farmers also relied heavily on outside labor, much of it clandestine. The apartheid state channeled unauthorized migrants to commercial farms by offering them the option of working on farms or being deported.
While South Africa's apartheid system generated many refugees, it was not until the 1980s that South Africa itself became a destination for about 350,000 Mozambicans fleeing the civil war in that country. About 20 percent returned home after the war ended; the rest were subsequently integrated into local South African communities along the border with Mozambique.
During the war, refugees were well-received by local communities. After 1994, however, many found that South Africans viewed them as "outsiders" and relations deteriorated.
Since 1994, South Africa has deported 1.7 million undocumented migrants to neighboring states like Mozambique, Zimbabwe, and Lesotho. In 2006 alone, 260,000 migrants were arrested and deported.
Human rights groups, including the South African Human Rights Commission, have widely criticized the deportation system. Most criticisms focus on the methods of arrest and removal, which these groups say are no different from those deployed to control black South Africans during the apartheid era.
|The Beit Bridge connecting Zimbabwe to South Africa is the busiest border crossing in South Africa.|
A holding center known as Lindela, through which many migrants pass prior to deportation, has also been the focus of major human rights investigations and complaints. Migrants and nongovernmental organizations (NGOs) often accuse the police of presiding over a corrupt system in which bribery and protection rackets are commonplace.
In late 2002, a new Immigration Act was signed into law after nearly eight years of negotiations. The act laid out a more immigration-friendly framework focused on attracting skilled migrants. It also committed the government to rooting out xenophobia in society although it did not specify how this was to be achieved.
However, the act also included still more draconian measures to control undocumented migration through what was euphemistically called "community policing" (that is, expecting South Africans to spy on people and report their suspicions to the authorities).
The act came fully into effect only in 2005, 11 years after the country's first democratic elections. There were three basic reasons why it took so long to craft and implement an alternative to the apartheid-era Aliens Control Act.
First, the new nation-building project after 1994 did not see immigration as positive or desirable. After the isolation of the apartheid years, the arrival of migrants and refugees from elsewhere in Africa caused widespread panic among South Africans. As both cause and consequence, South Africans are generally extremely intolerant of foreigners in the country.
Second, the government framed immigration policy reform primarily as an issue of control and exclusion, rather than as a management and development opportunity, hampering its efforts to move beyond the structure inherited from the apartheid era.
Finally, progress on immigration reform was slowed by a bitter partisan row within the Cabinet and Parliament between the Inkatha Freedom Party (IFP), which held the immigration portfolio, and the ruling African National Congress (ANC).
The final act that the ANC accepted and Parliament approved was very different from the one advisers to the IFP Minister of Home Affairs had drafted.
Authorized Migration after Apartheid
Prior to 1990, most authorized migrants to South Africa came from Europe and neighboring countries. South Africa's official migrant stock is still dominated by these two source areas.
The 2001 census, the latest date for which figures are available, showed that the migrant stock included 687,678 migrants from other Southern African developing countries (SADC) countries and 228,318 from Europe (see Table 1). Other source areas of growing importance included the rest of Africa (41,817) and Asia (40,889). In all, immigrants made up 2.3 percent of South Africa's total population in 2001.
The gender imbalance in migration from Africa (compared to earlier family-based migration streams from Europe) is notable. Since 2001, the numbers from other SADC countries and the rest of Africa have almost certainly increased but not by the "floods" of popular mythology.
Many aspects of contemporary migration patterns between South Africa and other African countries resonate with the long history of regional cross-border movement. A Mozambican migrant going to South Africa today may be taking the same roads as his father, and even grandfather, but for different reasons and to different destinations. As important, the Mozambican migrant may well be a woman.
The most obvious indicator of post-1994 change was a massive increase in the number of people entering South Africa legally from the rest of Africa on visitor's permits for purposes of visiting family and friends, tourism, or business (over 5.5 million in 2005) (see Figure 1).
The expansion and consolidation of South Africa's economic relations with the rest of the continent are also reflected in these figures. Small-scale entrepreneurs involved in cross-border trade, particularly those who come to South Africa to source goods to sell in their home countries, usually travel on visitor's permits. Thus, the increase in the issue of visitor's permits to Africans reflects a change in trading patterns and the growth in small- and medium-scale entrepreneurs involved in formal and informal cross-border trade.
By contrast, levels of immigration fell dramatically in the 1990s. The number of people granted permanent residence declined from around 14,000 per year at the beginning of the decade to 3,053 in 2000 (see Table 2).
However, the proportion of immigrants from Africa did increase over the decade, with Africans making up nearly half of all immigrants in both 2003 and 2004. Between 1990 and 2004, a total of 110,000 legal immigrants entered the country, 27 percent of whom were from other African countries.
In other words, contrary to the predictions of many, no massive brain drain to South Africa from elsewhere on the continent took place. Most commentators attribute the fall to the highly restrictionist immigration policy the South African government adopted after the fall of apartheid.
Since there was no obvious economic logic to this stance, many have seen it as the response of a new postapartheid nationalism that viewed all foreign citizens as outsiders and a threat to South African citizens' economic prospects. The government also claimed it did not wish to encourage the in-migration of skilled Africans to the detriment of their home countries.
After 1994, the number of people entering legally on temporary work permits also declined. In 1996, 52,704 work permits were issued, a number that fell to 15,834 in 2000. The decrease in the issue and reissue of temporary work permits had little to do with labor market demand and everything to do with government policy. Employers found it more and more difficult to hire abroad, even temporarily, and foreign workers found themselves enmeshed in Home Affairs red tape.
The restrictionist immigration and migration policy was at odds with another reality that South Africa, along with many other developing countries, has had to face: brain drain. South Africa has been shedding skills at an alarming rate to its global competitors, especially in the industrial, medical, and education fields.
Official emigration statistics do not capture the full dimensions of the brain drain. Statistics South Africa, for example, recorded a total of 92,612 people (including 20,038 with professional qualifications) emigrating between 1989 and 2003 to five main destination countries: the United Kingdom, the United States, Canada, Australia, and New Zealand.
However, the destination-country statistics of immigrant arrivals from South Africa show 80,831 professionals and 368,829 total immigrants arriving from South Africa during the same time period. Official statistics therefore undercounted the loss by around three-quarters.
Recent studies of the health sector conducted by SAMP showed massive discontent with virtually all aspects of working and living conditions. The vast majority of health professionals expressed an intense desire to leave South Africa. Around 8 percent of a national sample said they would probably leave within six months, 25 percent within two years, and half (52 percent) within five years.
The government could have viewed immigration policy as a partial solution to the growing "skills crisis." That change did not happen until 2004, when the government introduced the Joint Initiative for Priority Skills Acquisition (JIPSA), which emphasizes accelerated training of South Africans in priority areas. It also acknowledges that particular sectors require skills from outside the country. In other words, JIPSA is consistent with the general principles outlined in the 2002 Immigration Act.
The number of residence work permits issued has risen again since 2002, but employers still complain about the bureaucratic red tape the act requires.
After 1994, legal contract migration to the mines and farms of South Africa from Botswana, Lesotho, Mozambique, and Swaziland continued much as before. However, three important trends became evident.
First, a stagnant gold price and rising costs forced many to close and downsize in the 1990s. The size of the workforce dropped from 376,000 in 1990 to 230,000 in 2000 (see Table 3). With higher gold prices in 2006, however, the workforce number rose again to around 268,000.
Second, mining companies increasingly subcontracted core production functions. Over 15 percent of the mine labor force worked for contractors by 2000 according to a study of subcontracting published by SAMP. Retrenched Mozambican and Lesotho miners were an important source of labor.
Third, non-South African migrants became a larger proportion of the mine workforce, rising from 47 percent in 1990 to nearly 60 percent by 1999. In particular, Mozambicans' share of the mine workforce increased from 12 percent in 1990 to 25 percent in 2000.
The South African gold mining industry entered a period of renewed expansion after 2000. The mining companies fought hard to keep their right to hire foreign contract workers without government interference. Earlier drafts of the 2002 Immigration Act were modified to accommodate this lobby.
However, the 2002 Immigration Act still made it more difficult for the mining companies to hire foreign workers. They now must apply for "corporate permits" which, once the government grants the permits, allow them to import a specified number of foreign workers.
The government hoped the new law would push mining companies to hire South Africans. Indeed, the mines have found it easier to hire locally since this system is inflexible and too bureaucratic.
Consequently, the proportion of South African miners has begun to rise again. As of 2006, the foreign contract migrants' share of the mine workforce was 38 percent, down from 59 percent in 1997.
The New Refugees
South Africa did not recognize refugees until 1993, and it was only following the transition to democracy that South Africa became a signatory to the UN and Organization of African Unity conventions on refugees.
Due to their skin color and the government's lack of a refugee policy, the Mozambican refugees who arrived in the 1980s were never granted full refugee status. Many lived in South Africa as undocumented migrants until 2000-2001, when the government legalized their status by giving them permanent residence.
Since 1990, South Africa has become a new destination for refugees from the rest of Africa. According to the South African government, there were nearly 160,000 refugee claims between 1994 and 2004 (see Table 4). Of these, the majority (74 percent) were from African countries. Rates of acceptance varied from country to country.
The numbers have continued to grow. The country received 45,673 new applications in 2007 alone, according to the South African Department of Home Affairs (DHA). Asylum seekers from Somalia, the Democratic Republic of Congo, and Angola had high rates of acceptance. Those from most other African countries and elsewhere were turned down.
The racist, apartheid-era Aliens Control Act regulated the reception of those who arrived in the 1990s, meaning refugees and/or asylum seekers did not have the right to work or to access services.
A Refugee Act governing asylum seekers' admission and setting in place a process for adjudicating claims was passed in 1998 and became effective in 2000.
The refugee adjudication system is underresourced, in terms of both budgets and staff, and beset with problems, including inexperienced adjudicators, poor information on countries of origin and the validity of claims, and a tendency to make decisions based not on individual circumstances, but simply on the basis of the origin country.
As a result, the backlog of claimants is extremely high, with DHA reporting over 89,000 applications from 2006 and 2007 still to be processed as of February 2008.
Asylum seekers, particularly those from Zimbabwe, are constantly at risk of deportation to their home countries. Human rights groups have pointed out that South Africa, as a signatory to the UN refugee convention, is bound by the principle of non-refoulement, and that the government breaks international law by sending people back to face persecution.
The Special Case of Zimbabwe
Zimbabwe's economic implosion and political oppression have created a global Zimbabwean diaspora over the last decade. Most unskilled and semiskilled migrants (and considerable numbers of skilled migrants, too) have migrated to Botswana and South Africa.
Their reception in South Africa has been anything but welcoming. Many of the xenophobic attacks of May 2008 were directed at Zimbabweans.
The number of Zimbabweans in South Africa is unknown. The South African government claims the number is 3 million and rising. This is almost certainly an exaggeration. Other, more realistic estimates put the number at 500,000.
South Africa's Zimbabwe foreign policy, which has focused on trying to mediate an agreement between President Robert Mugabe and his political opponents, has had little impact on economic and political events in Zimbabwe. Ironically, this policy may even have exacerbated the flow of migrants out of the country.
At the same time, in South Africa itself, the police are rounding up Zimbabweans en masse and deporting them back to Zimbabwe, actions human rights groups and the United Nations High Commissioner for Refugees have criticized.
The Zimbabwean economy — and consequently many Zimbabwean families — have survived only because of remittances sent from those living in South Africa and elsewhere. The World Bank has no estimates of the remittances Zimbabwe has received in recent years, but it does report that remittance flows out of South Africa exceeded US$1 billion in both 2005 and 2006; what proportion of those flows went to Zimbabwe, however, is unclear, particularly since Lesotho and Mozambique are also major recipients of remittances.
Without these remittance flows, analysts believe the number of Zimbabweans leaving the country for South Africa and elsewhere would almost certainly increase dramatically.
Undocumented or unauthorized migration has been part of regional migration to South Africa for decades. For considerable parts of South Africa's history, the state sanctioned undocumented migration from the region and at times incorporated such migrants into labor-supply schemes.
However, the scale, scope, and impact of undocumented migration changed in the 1990s. Although migrants from Mozambique, Zimbabwe, Lesotho, and Malawi comprise the majority of undocumented migrants, evidence indicates that undocumented migration from the rest of Africa, Europe, North America, Asia, and the Indian subcontinent is also increasing.
As in most countries, it is virtually impossible to know how many undocumented migrants reside in South Africa or where they come from. The South African government most often cites an estimate of 4 to 8 million in the country at any one time, but this is likely an exaggeration.
Statistics South Africa has said it believes the number of undocumented migrants to be in the 500,000-to-1-million range. The Human Sciences Research Council officially withdrew the 4-to-8-million figure, but the press continues to use it.
Research shows that the majority of people enter South Africa from neighboring states legally, with documents, and through established border posts. Once they arrive, however, some overstay their visas.
Furthermore, debates around migration — and particularly undocumented migration — are permeated by the perception that migrants, especially those from the region and the rest of Africa, want to live in South Africa permanently.
Historically, regional cross-border migration was temporary, with migrants regularly returning home while working and going home permanently for their retirement, if not before. SAMP research also suggests that the majority of regional migrants do not stay permanently in South Africa, nor do they intend to.
Policy Shifts Since 2002
The 2002 South African Immigration Act was produced by a process that many NGOs and Parliament criticized as procedurally flawed.
During the course of the Cabinet and Parliamentary review process, the ANC, the governing party, gutted many of its key elements, such as a levy on employers who hired foreign workers, the establishment of separate immigration courts, and the creation of a body akin to the old U.S. Immigration and Naturalization Service. The ANC removed all provisions for this institution, leaving immigration authority under the Minister of Home Affairs.
The act itself does not enjoy widespread support from labor, business, NGOs, and even other government departments. Indeed, even the minister responsible for the act was extremely critical of its final form when he introduced the bill in Parliament.
In 2004, the new ANC Minister of Home Affairs acknowledged the act's failings and promised to set in motion a policy review process that would lead to a new policy framework and legislation. Four years on, the need for a review has become even more urgent. In 2008, DHA initiated this process, and a new policy approach to immigration is expected in 2009.
After 2004, other changes were evident as well. For a decade, South Africa had blocked any move toward greater freedom of movement within the Southern African Development Community (SADC), which includes 15 African states from South Africa in the south to Tanzania in the north.
South Africa viewed two Protocols (the 1995 Draft Protocol on Free Movement and the 1998 Draft Protocol on Facilitation of Movement) as so threatening that the protocols had no chance at ratification. This all changed in 2004 when the ANC finally got control of the Home Affairs portfolio. South Africa was among the first states to ratify a revised SADC Protocol on Facilitation of Movement.
The government has also moved forward bilaterally, signing an agreement in 2007 with Lesotho to downgrade border controls and facilitate cross-border movement. Visa-free movement agreements with countries such as Mozambique were also concluded. These moves are consistent with the new, high-level political vision of South Africa as part of an integrated region.
The South African Minister of Home Affairs, Nosiviwe Mapisa-Nqakula, has also championed a development-oriented approach to migration policy and management. She spoke on behalf of the G77 plus China at the UN High Level Dialogue in September 2006, touching in a measured and constructive way (in contrast to the churlish inputs of many Western countries) on many of the themes central to the migration-development debate.
Within South Africa itself, Mapisa-Nqakula has also advanced the concept of migration for development. South Africa has endorsed both the African Union (AU) Strategic Framework on Migration and the AU Common Position on Migration and Development.
One of the fundamental problems facing Home Affairs and any drafters of a new regionalist and development-oriented immigration policy is a public that remains extremely hostile to immigration as a principle and to migrants in general.
The horrific events of May 2008 — in which over 70 migrants were killed and tens of thousands were hounded out of their communities by South Africans — are the tip of the iceberg. A nationally representative survey of South African attitudes that SAMP conducted in 2006 showed very high levels of intolerance across the entire population. The study showed that South Africans are still among the most hostile to outsiders in the world.
Xenophobia is a deep and pervasive phenomenon that the government has not yet fully acknowledged, much less addressed, beyond isolated efforts. The preamble to the 2002 Immigration Act maintained that xenophobia needed to be contested. However, the act laid out no specific measures, as noted earlier, and there is no evidence that the act itself has made any difference to South African attitudes.
President Thabo Mbeki now blames the May 2008 attacks on criminality rather than xenophobia as he seeks to assure the rest of Africa and the world that South Africans are not, in fact, xenophobic at all.
Unless the government acknowledges and addresses the realities of xenophobia, it will be very difficult to move forward with new development-oriented policy initiatives and programs.
Black, Richard, Jonathan Crush, and Sally Peberdy. 2006. Migration and Development in Africa: An Overview. SAMP African Migration and Development Series No. 1, Cape Town. Available online.
Crush, Jonathan and Bruce Frayne, eds. 2007. The Migration-Development Nexus in Southern Africa. Special Issue of Development Southern Africa 24 (1).
Dodson, Belinda. 2008. Gender, Migration and Remittances in Southern Africa. SAMP Migration Policy Series No. 49, Cape Town.
McDonald, David, ed. 2000. On Borders: Perspectives on International Migration in Southern Africa. New York: St Martin's Press.
Pendleton, Wade et al. 2006. Migration, Remittances and Development in Southern Africa. SAMP Migration Policy Series No. 44, Cape Town. Available online.
Peberdy, Sally and Jonathan Crush. 2007. Histories, Realities and Negotiating Free Movement in Southern Africa. In Migration Without Borders, eds. Antoine Pecoud and Paul de Guchteneire. Paris: UNESCO.
Ratha, Dilip and Zhimei Xu. 2008. South Africa in Migration and Remittances Factbook 2008. Washington, DC: World Bank. Available online.